Judgment:
Milap Chand Jain, J.
1. This appeal is directed against the judgment and decree dated May 31, 1974 passed by the learned Additional Civil Judge, Udaipur, whereby, Civil Appeal No. 27 of 1971 was allowed and the judgment and decree of the learned Munsif, Udaipur dated August 5, 1971 dismissing the plaintiff's suit were reversed and the plaintiff's suit for permanent injunction was decreed.
2. The plaintiffs-respondents instituted the suit against the defendants Sadiq Ali and Tayab Ali sons of Ismail with the allegations that the parties belong to one family. They have got house No. 13/56 in the City of Udaipur. The parties are in possession of their respective shares in that house. The plaintiffs alleged that the land measuring 38 x 12-1/2 feet situated towards the west of the house belongs to the plaintiffs, which is shown in plan (Ex. 1) as ABCD. The plaintiffs alleged that they have got a right to go to their house through this open land. There is a joint chowk towards the east of the main entrance of the house and there is stair-case in the north. There are drains for the discharge of water. It was also alleged that windows and jalies of plaintiffs No. 1 and 3 abut on the open land ABCD. These windows and jalies are being used for more than 60 years. It. was alleged that the plaintiffs want to raise construction on this open land, for which, necessary permission has been obtained from the Muncipal Council, Udaipur. The plaintiffs prayed for permanent injuction restraining the defendants from raising any construction over the open land, which may affect the plaintiffs rights claimed in paras 3, 4, 6, 7, 8, 9 and 10 of the plan.
3. The suit was resisted by the defendants. It was alleged by them that the house in question was a joint property of Allah Bux and Isamil, which was partitioned by them in Samvat Year 1971. The plaintiffs No. 1,3 and 4 are in possession of their respective share of Allah Bux and over the share of Ismail, the defendants and plaintiff No. 2 are in possession. It was averred that the open land fell to the share of defendant No. 1 and the same land is in his possession. It was further averred that in the document of Samvat Year 1971, a right of way was kept over the open land but Ismail was conferred a full right of raising construction over this land. The plaintiffs have no other right except the right of passage. As regards the right of light and air through the windows and jalies, alleged by the plaintiffs, it was stated that on raising construction by the defendants, they are liable to be closed under the aforesaid document. It was prayed that the plaintiffs' suit may be dismissed.
4. On the pleading of the parties, two issues were framed. Evidence of the parties was recorded. Thereafter, the learned Munsif dismissed the suit after hearing the parties. He decided both the issues against the plaintiffs. In issue No. 1 he found that the plaintiffs have failed to prove that the open land measuring 38 x 12-1/2 feet belongs to the plaintiffs. While dealing with the easementary rights claimed by the plaintiffs In Issue No. 2, the Munsif found that the plaintiffs have no such rights as claimed, consequently, the plaintiffs suit was dismissed.
5. Dissatisfied with the judgment and decree, the plaintiffs preferred an appeal, which was heard by the learned Additional Civil Judge. He recorded the finding on Issue No. 1 to the effect that the plaintiffs have failed to prove their exclusive possession and right of ownership over the land in question. Accordingly he upheld the finding on Issue No. 1. Issue No. 2 was decided in favour of the plaintiffs and it was found by the learned Additional Civil Judge that the plaintiff's rights have been fully proved as they have been acquired by them on account of their enjoyment for more than 20 years, as of right and consequently, the defendants were restrained from making any interference in the enjoyment of right of way through the disputed land shown in the plan ABCD (Ex. 1). The defendants were also restrained by perpetual injunction from making any interference in the enjoyment of right of way through stair-case shown in the site-plan at point 'X' and the defendants were also restrained from closing the two windows and four ventilators, which open towards the land ABCD and also from interfering with the flow of water of plaintiff's house, which flows through the disputed plot ABCD.
6. Dissatisfied with the judgment and decree of the first appellate court, the defendants have preferred this appeal.
7. I have heard Mr. D.D. Thanvi, learned Counsel for the appellants and Mr. R.N. Mathur, learned Counsel for the respondents.
8. On behalf of the appellants, Mr. D.D. Thanvi urged that the first appellate court has not considered the case in proper perspective. House No. 13/56 stood divided between Allah Bux and Ismail and the parties were in possession of their respective shares. The document Ex, Ex. A/1 'Farkati' clearly recites that the plot in question described as 'Talia' in Ex. A/1 fell to the share of Ismail and right was given to Shri Ismail to raise construction over it and at the time, when construction would be raised, it was agreed upon that Allah Bux shall close all the windows and jalies. The learned Additional Civil Judge took notice of this recital but procceded to examine the question of easementary right of light and air through the windows and jalies. Mr. Thanvi urged that in view of the agreement between the parties no easementary right can arise. Whenever any construction is raised over the portion ABCD, Allahbux and his successors are under an obligation to close the windows and jalies and no easementary right can be claimed by them. Condition in the document Ex. A/1 not only binds Allahbux but it also binds his successors.
9. I find force in the aforesaid submission of learned Counsel for the appellants. The learned Counsel for the respondents has not been able to successfully contend, that this condition of document Ex. A/1 would not be binding on the parties. Such a condition in Ex. A/1 can be looked into and is admissible. Ex. A/1 is admissible for collateral purpose and possession and other terms and conditions and recitals agreed upon between the parties can be proved. The document Ex.A/1 has not been disputed before me. This part of the decree granted by the first appellate court is, therefore, not sustainable.
10. The defendants have admitted the plaintiffs right of way through the open land ABCD. In para 4 of the written statement, the defendants have averred that the passage was kept over the land in question for ingress and egress to the house No. 13/56. Similarly in para 8, it is stated that the stairs-case shown in the plan are used for ingress and egress from the house No. 13/56 Thus, to this extent, the plaintiffs case is admitted by the defendants. Thus for enjoyment of right of way in order to have access to house No. 13/56 after using stairs shown in the site-plan, the plaintiffs are entitled to relief. The rest of the relief, the plaintiffs are not entitled as the defendants are vested with the right to raise construction over the land ABCD. As a result of raising construction over the portion ABCD if other amenities of the plaintiffs are interfered with or disturbed, the plaintiffs can claim no relief.
11 Accordingly, this appeal is partly allowed. The defendantappellants are restrained from interfering in the enjoyment of right of way of the plaintiffs in order to have access to house No. 13/56 through the staircase shown in site plan Ex. 1. The rest of the plaintiffs claim is dismissed and the defendant-appellants will have a right to raise construction over the plot ABCD in the manner, so that, right of way of the plaintiffs to their house is not in any way affected. Costs shall be easy throughout.